Emil Davis v. The Oriental Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** **MACA NO. 280 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 2195/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** **PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **EMIL DAVIS, AGED 23, S/O. DEVASSY KUTTY, MAVELY HOUSE, KARAYAMPARAMBU, KARUKUTTY P.O., ANGAMALY BY ADV SRI.V.K.GOPALAKRISHNA PILLAI** ## **RESPONDENT/RESPONDENT NO.2:** **THE ORIENTAL INSURANCE CO.LTD, KALLORKARAN, SHOPPING COMPLEX, ANGAMALY P.O., ERNAKULAM DISTRICT 683 572 BY ADV SRI.GEORGE CHERIAN THIRUVALLA** ## **OTHER PRESENT:** **SMT LATHA SUSAN CHERIAN-RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.280/2011 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.2195/2005 on the file of Motor Accidents Claims Tribunal, Perumbavoor. Claim petition was filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for the injuries sustained by the claimant out of a motor accident occurred on 04.05.2004 at about 6.15 p.m. 2. On the above said day while he was riding motorcycle bearing Reg.No.KL-8/A-9116 through Mookkannoor – Karayamparambu road from east to west and reached at Karayamparambu, mini lorry bearing Reg.No.KL8/C-7047 ridden by the first respondent hit the motorcycle resulting in grievous injuries to him. Immediately he was taken to Little Flower Hospital, Angamaly and from there to Medical Trust Hospital, Ernakulam. It is alleged that accident happened due to the rash and negligent driving of the mini MACA No.280/2011 3 lorry by the first respondent. First respondent is the owner cum driver of the mini lorry. Second respondent is the insurer of the mini lorry. Third respondent is the insurer of the motorcycle, which the claimant was riding. 3. Before the Tribunal, first respondent remained ex parte. Second respondent filed written statement admitting the policy coverage with respect to the offending vehicle but rashness and negligence on the part of the first respondent is denied. Claim of compensation under various heads are also totally denied. It is further contended that the accident occurred due to the rash and negligent riding of the motorcycle by the claimant and hence 2[nd] respondent denied the liability. 4. PWs 1 and 2 examined and Exts.A1 to A10 marked from the side of the appellant/claimant (hereinafter be referred as the claimant). There was no evidence from the side of the respondents. 5. Tribunal awarded a total compensation of Rs.1,57,178/- with interest at the rate of 8% per annum from MACA No.280/2011 4 the date of petition till realisation from respondents 1 and 2 jointly and severally. The Tribunal also found that the claimant had contributed to the accident since he was not having driving licence to ride the motorcycle and he was not wearing helmet at the time of accident and 25% of the compensation amount was deducted towards his contributory negligence. The balance amount of Rs.1,17,884/- was awarded. Dissatisfied with the Award, claimant came up in appeal for the various grounds stated in the memorandum of appeal. 6. Second respondent, the insurer of the offending vehicle, alone has been arrayed as respondent in this appeal. Smt. Latha Susan Cherian appeared on behalf of the 2[nd] respondent. Both sides were heard. LCR was called for and perused. 7. According to the learned counsel for the claimant, the finding of contributory negligence on the part of the claimant by the Tribunal is baseless and unsustainable since the charge sheet has been laid against the first respondent, the owner cum driver of the offending vehicle. It is also MACA No.280/2011 5 contended that the compensation awarded under various heads are also very low and the income has been taken only at the rate of Rs.1,500/- per month and no amount was awarded towards loss of earning. It is also contended that the claimant sustained fracture of frontal bone but only 30% disability as certified by the doctor has been accepted by the Tribunal, that also has to be enhanced. It is also contended that the amount towards compensation for pain and suffering, loss of amenities, attendant expenses etc are very low. Hence he seeks enhancement of compensation on all those heads. 8. Learned Standing Counsel for the respondent insurance company on the other hand would contend that disability certificate is not issued by a Medical Board even then the Tribunal has taken the entire disability as certified by the doctor as 30%. Adequate compensation have been awarded on all heads and hence no interference is called for in this appeal. 9. The incident in this has occurred on 04.05.2004 and the claimant was a student doing plus two at the time of MACA No.280/2011 6 accident. So the income notionally fixed as Rs.1,500/- is seems to be very low. 10. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by MACA No.280/2011 7 resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 11. In National Insurance Company Ltd. v. Fathimath Zuhara [2016 (3) KLT 459] Division Bench of this Court fixed monthly income of Engineering student in an accident occurred on 10.09.2005 as Rs.12,000/-. 12. In the present case, the claimant was a Higher Secondary School student at the time of accident and the incident was in the year 2004. Hence the monthly income of Rs.3,000/- claimed by him seems to be reasonable. Hence I accept the monthly income of the claimant as Rs.3,000/- per month, instead of Rs.1,500/- notionally fixed by the Tribunal. 13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court laid down the principles to be followed while fixing compensation under various heads in injury matters and how the computing could be made with respect to the injury and the permanent disability and the loss of earning capacity. 14. It has been held by the Apex Court that in cases MACA No.280/2011 8 where claimant suffers permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of common disability of his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What is to be assessed is the effect of permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money to arrive at the future loss of earnings. 15. In the present case, the claimant was initially taken to Little Flower Hospital, Angamaly. As per Ext.A4 wound certificate the Casualty Medical Officer examined the claimant and noted the injuries: (1) Fracture fronto parietal skull with bone chips 12x4 cm wound with main tissue exposed and (2) Lacerated wound bone deep 4”x3” upper third humerus exposed (R)muscles avulsed. PW1 is the Senior Consultant and Ophthalmologist of Little Flower Hospital, Angamaly having MACA No.280/2011 9 14 years practice. The claimant was treated by him and according to the doctor the claimant has no eyesight to the right eye. Ext.A8 ophthalmic report dated 17.06.2007 is issued by Dr. Anil Sreedhar, wherein, it has been reported that the claimant has optic atrophy of right eye and right eye has no vision. Thereafter he was taken to Medical Trust Hospital, Ernakulam, where he had undergone treatment upto 09.06.2004. The injuries noted as per Ext.A5 wound certificate issued by them are: (1) lacerated wound on the left frontal region (2) crush injury to the right ear with injury to the muscles and vessels at the level of maxilla (3) multiple contused abrasions on the extremities (4) bleeding from the nose and mouth (5) black eye right, no perception of light in the right eye. CT scan of brain showed compound depressed fracture of frontal bone, bifrontal contusion, pneumocephallus and cerebral oedema. 16. Ext.A8 certificate is proved through PW1 the Ophthalmologist. Though he was cross examined, no material could be brought out to discredit Ext.A8 certificate. MACA No.280/2011 10 17. PW2 is the R.M.O attached to Sreedhareeyam Ayurvedic Eye Hospital and Research Centre (P) Ltd, Koothattukulam. Ext.A9 medical certificate and Ext.A10 discharge summary have been proved through PW2 though it has been issued by Dr. K.P. Sreejith, who had gone abroad for higher studies. So the evidence of PWs 1 and 2 and the medical records would prove that he had undergone 62 days inpatient treatment in total and suffered 30% permanent disability. So rightly Tribunal adopted 30% as the permanent disability. 18. Though the learned counsel for the claimant sought for enhancement of percentage of disability in view of the fact that he had fracture on frontal bone and had undergone treatment at Medical Trust Hospital and disability certificate is only with respect to his loss of eyesight, since no disability certificate has been produced by the claimant to prove any disability in that regard, this Court is not in a position to fix the disability on a higher side than that was fixed by the doctor. So permanent disability certified by the doctor at 30% MACA No.280/2011 11 is only to be accepted. 19. With regard to loss of earning, the learned counsel for the insurer would contend that the claimant was only a student and there is no income. But even in such cases Tribunal/Court should fix some income to award a just compensation. The materials produced from the side of the claimant would prove that he had undergone inpatient treatment for more than two months and that might have affected his studies and hence compensation for six months can very well be awarded to the claimant towards loss of his studies. It would come to Rs.18,000 /- [3,000x6]. 20. Claimant was aged 18 years at the time of accident. As per the dictum laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121], approved in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] the suitable multiplier is '18'. So the amount towards permanent disability would be Rs.1,94,400/[3,000x12x18x30/100]. Deducting the amount already awarded, the claimant is entitled to get Rs.97,200/ - [1,94,400- MACA No.280/2011 12 97,200]. Towards attendant expenses, Rs.200/- per day can be taken, since the accident was in the year 2004. Then the claimant would be entitled to get Rs.12,400/- [200x62] on that head. Deducting the amount already awarded, claimant would get Rs.6,200/ - [12,400-6,200]. Towards extra nourishment, Tribunal awarded only Rs.2,000/-. Claimant being a student, aged 18 years at the time of accident, an amount of Rs.5,000/can reasonably be granted towards extra nourishment. Deducing the amount already awarded, the balance would be Rs.3,000/- [5,000-2,000]. Towards pain and suffering, Tribunal awarded Rs.16,000/-. It has come out in evidence that he has undergone 62 days inpatient treatment and vision of one of his eyes totally lost. There was also fracture of frontal bone. So taking into account all those factors into account, Rs.30,000/is granted towards pain and suffering. Deducting the amount already awarded, the balance would be Rs.14,000 /- [30,00016,000]. Towards loss of amenities, Tribunal awarded Rs.10,000/- only. It is enhanced to Rs.20,000/-. Deducting the amount already awarded, the balance would be Rs.10,000 /- MACA No.280/2011 13 [20,000-10,000]. Accordingly, in total, the claimant is entitled to get Rs.1,48,400/- [18,000+97,200+6,200+3,000+14,000+ 10,000]. Though the Tribunal awarded a total compensation of Rs.1,57,178/-, deducting 25% (Rs.39,294/-) towards contributory negligence, only Rs.1,17,884/- was awarded. 21. There is finding of contributory negligence by the Tribunal for the reason that the claimant was not having driving licence and further that he was not wearing helmet. 22. In Mohammed Noufal T. v. Saheed and Ors. [2018 (1) KHC 507, a Division Bench of this Court held that mere absence of driving license of the claimant is not a factor to be taken into consideration to hold that claimant also contributed to the accident. In Oriental Insurance Co. Ltd v. Jayan & Ors. [2012 KHC 656 : 2012 (3) KLT SN 115 (C.No.118)] it has been held that mere absence of driving license by the person who drove the vehicle at the time of accident is not enough, insurance company has to prove that the vehicle was allowed to be driven by the owner of the vehicle by the person who is not holding a valid licence. MACA No.280/2011 14 23. Another reason for finding 25% contributory negligence is for driving without helmet. But there is no case for anybody that it has contributed to the accident. There is no finding by the Tribunal also that driving without helmet has caused the accident. In Jose P.J. & Anr. v. Niyas & Ors [2016 (1) KHC 485 : 2017 ACJ 170] a Division Bench of this Court while dealing with Section 166 of the Act held that nonwearing of helmet could not be taken as a ground to fix contributory negligence on the part of the rider. In National Insurance Co.Ltd v. Vimla & Ors (D.B.) [2017 KHC 7522 : 2017 ACJ 2695 (Allahabad H.C.)] it has been held that breach of rules in driving two-wheeler without helmet and driving it with 3 pillion riders by itself cannot be taken as contribution to negligence on the part of motorcyclist. 24. In New India Assurance Co.Ltd. v. Sharda Devi & Ors [2013 KHC 5103 : 2013 ACJ 652] a Division Bench of Allahabad High Court held that two wheeler riding without helmet and with three pillion riders by itself cannot be treated as contributory negligence. MACA No.280/2011 15 25. In the above decision Sudhir Kumar Rana v. Surinder Singh & Ors. [AIR 2008 SC 2405] has been quoted wherein it has been held that though a person drives vehicle without licence may constitute an offence, that by itself may not lead to a finding of negligence as regards the accident. In the absence of finding of fact that he was driving the two wheeler rashly and negligently, he cannot be held liable for contributory negligence also. 26. In New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648] a Division Bench of this Court held that when charge sheet is produced it will follow that the negligence is on the part of the person against whom the charge has been laid. The parties who wanted to object that has to adduce evdience to disprove the same. It is also held that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. In this case, eventhough Exts.A1 and A2, FIR and scene mazhar and A3 charge sheet have been produced, no contra evidnece has MACA No.280/2011 16 been adduced from the side of the respondent. So the finding with regard to the contributory negligence by the Tribunal is without any basis and hence cannot be sustained either in law or on facts. Hence the said finding is hereby set aside. 27. Hence, the amount deducted towards contributory negligence has to be added since finding of contributory negligence has been set aside. So by adding Rs.39,294/- , the claimant would be entitled to get Rs.1,87,694/[1,48,400+39,294], rounded off to Rs.1,87,700/-. 28. In the result, the claimant is allowed to realise enhanced compensation of Rs.1,87,700/ - (Rupees one lakh eighty seven thousand seven hundred only), which will carry interest at the rate of 7.5% per annum from the date of petition till realisation. Respondent-insurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 29. The disbursement of additional compensation to appellant shall be made taking note of the law on the point 17 MACA No.280/2011 and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** **shg/**